“There is NOT a Discrimination Problem in Germany” The Contradictory Case of European Harmonization and Germany’s Ineffective Anti-discrimination Law

The German anti-discrimination law has been called many things. The most damning comparison, however, may have been the one issued by Jürgen Gehb, legal affairs’ spokesman of the CDU, before the bill was even passed into law. Speaking to a group of parliamentarians, he likened the law to “stinky hand cheese that has lain out in the sun for too long.” Formally, the law Mr. Gehb was referring to is the Allgemeines Gleichbehandlungsgesetz (General Equal Treatment Law, or the AGG), though it is more frequently referred to simply as the anti-discrimination law. The Federal Republic of Germany enacted the AGG in 2006 to comply with EU directives on the eve of facing stiff fines from Brussels. Two years later, many human rights advocates charge that the AGG does too little, while business groups and employers’ lobbies continue to counter that Germany does not have a discrimination problem.

Nevertheless, even with the protections of the AGG, a gay couple can rightfully be denied an apartment based simply on their sexual orientation. The physically disabled are not allowed to enter the Berlin Television Tower under the pretext of safety concerns and are thereby denied access to the popular observation deck and its splendid views of the city. To top it all off, Germany has yet to establish an effective equality body to help complainants navigate the AGG’s complicated legal terrain. How did a well-meaning bundle of EU directives intending to harmonize discrimination protection sink to the level of “stinky hand cheese” in Germany?

The story of the AGG is a complicated history riddled with contradictions. The government consistently dragged its feet in implementing the directives, yet Germany could have easily blocked them at the EU. It is a story involving side-deals to placate Bavarian farmers and staunch opposition from business interests. At times, the government has appeared to suffer from a severe split-personality – despite its consistent delays in meeting the directives, the government nevertheless went far beyond the EU mandates in extending protections. And in the end, for all the sensational worries from employers that they would be swamped with lawsuits, the result has been a law that after two years has yielded almost no litigation.

From Brussels to Berlin

The path to the AGG begins in Brussels. While the EU had a well documented impact on gender equality law from the 1970s onwards, there remained wide variation between nations on equality protections for those of minority communities. In 2000, the EU set out to close this gap with a package of four directives intended to harmonize the community’s equality laws. The most notable of these directives were the “Racial Equality Directive” (2000/43/EC) and the “Employment Equality Directive” (2000/78/EC). The former mandated equal treatment on the basis of racial and ethnic origin in the labor market as well as broader social life, e.g. healthcare, education, and housing. The latter, though somewhat narrower in its scope – it applies strictly to the workplace and vocational academies – offered protection on a wider basis, including sexual identity, religion or belief, race or ethnic origin, ability, and age.

Germany could have easily blocked these measures if it wished to avoid extending its national equal treatment laws – three of the four directives required unanimous consent in the Council of Ministers. But German politicians mistakenly believed that the existence of German laws (including Article 3 of the constitution guaranteeing equality of all persons, and over eighty regulations for the treatment of the disabled) meant that the country was already well placed to comply with the directives. Walter Riester, then Federal Minister of Economics, even went so far as to remark that the regulations were “Snow White” directives – a reference to the Disney character which implies a directive that is purely symbolic in its nature.

Needless to say, many were caught off guard in 2002 when the German Ministry of Justice circulated an internal draft bill aimed at bringing Germany into compliance with the EU directives. The business community reacted quickly against the legislation, fearing that the new law would subject them to a raft of litigation and additional bureaucracy. After four years, the Bundestag, Germany’s Lower House of Parliament, finally passed an anti-discrimination bill in June 2005. Ms. Martina Perreng, a councilor on employment issues to the Federal Board of the Deutscher Gewerkschaftsbund (DGB), the umbrella association for German trade unions, pointed to the intense lobbying of German business interests as a primary cause of this delay. The delays continued, however, when the Bundesrat, Germany’s Upper House of Parliament, objected to the bill the following month, causing it to die in the fall when the snap elections of 2005 ushered in a fresh parliament governed by a new “grand coalition.” The grand coalition brought together the two major parties in Germany, including the left of center Social Democrats (SPD) and the more conservative Christian Democrats (CDU/CSU).

At first, the grand coalition seemed to present even more obstacles to an inclusive anti-discrimination law than the prior, more liberal coalition of Social Democrats and the Greens. The Christian Democrats had campaigned on a platform promising a “one-for-one” implementation of the EU directives, meaning German law would go only so far as mandated by the EU. The Social Democrats, meanwhile, continued to push for broader inclusion of other minority groups in all parts of the legislation, including in social life, in which the EU directives only mandated protection for racial and ethnic minorities. Ultimately, advocates for broader inclusion got their wish from a most unusual source: Bavarian farmers. The CSU (the Bavarian Christian Democrats) was pushing for more support for German farmers, which form an important part of the party’s base. In return, the conservative CDU/CSU alliance allowed the anti-discrimination law to be written as the SPD desired, meaning the law’s protections would be extended to all minorities. The compromise, however, was an awkward stepchild of the coalition, and left both sides dissatisfied.

Even with the compromise, debate remained contentious until the last minute. Commenting on the draft AGG, the Bundesverband der Deutschen Industrie (BDI), a highly influential national trade federation, stated on June 1, 2006 that “There is no distinct discrimination problem in Germany.” The Bundesvereinigung der Deutschen Arbeitgeberverbände (BDA), a similarly influential lobby for German employers, cited statistics that less than 2% of German workers felt that they suffer from discrimination. Of a more general concern to employers was a worry that the legislation would impede their ability to make autonomous decisions. Specifically, they felt that the law would impede the freedom to form contracts, an important legal principle in German civil law.

Unions, however, took a more cynical view of such objections. Ms. Perreng replied that these claims were “pure propaganda” on the part of the business lobbies. She continued, saying that there are always limits to the freedom to form contracts, and this freedom reaches its limit when it impinges upon the principle of equality, another important German legal principle. According to Perreng, one cannot simply conceive of the AGG as limiting the freedom of employers, but must also acknowledge its vital role in guaranteeing individuals’ freedoms. She further pointed out that if Germany truly lacked a discrimination problem, then the employers should have had nothing to fear.

Finally, on June 29, 2006, the German parliament passed the AGG into law. The years of delay meant that Germany had risked stiff fines from the EU. At the time the AGG became law, in fact, the Commission was close to levying a €900,000 per day fine against Germany for failure to comply. Germany avoided the stiff fines, but the compromises necessary to pass the bill would soon reveal significant obstacles in the law’s ability to tackle discrimination.

The Effects of the AGG

Two years later, the law has not had quite the effect many were hoping for. Human rights expert Dr. Hendrik Cremer, of the Deutsches Institut für Menschenrechte (German Institute for Human Rights), points out numerous flaws and loopholes within the law. Those who advocate on behalf of marginalized communities, like Martin Marquard, Berlin State Commissioner for Disabled People, concede that the law is “inadequate.” Meanwhile, Dr. Friedhelm Krey, a counselor at the Schwulenberatung Berlin (an organization that provides advice and counseling to LGBT identified individuals in Berlin) points out that individuals have been slow to use the rights granted by the AGG. A telling example is the fact that for the year 2007, only 0.1% of the cases pending before the Länder employment courts concerned the AGG.

When asked about the lack of significant litigation under the AGG, Dr. Krey responded that he often wonders this as well. “Naturally, I also ask myself why they aren’t queuing at my office all day,” Dr. Krey said. In answering his own question, however, Dr. Krey went on to elaborate many reasons why people have been slow to exercise their new rights. He pointed first to the political, asserting that the grand coalition compromised the very manner in which the AGG exists. Though the AGG went further than required in some areas, the result of the coalition was a law that is “complicated” and contains “several loopholes.”

The first difficulty for victims of discrimination under the AGG is the relatively short reporting period: victims must file their report within two months. While this period might, at first, seem like sufficient time, it fails to consider that victims often take time simply to accept that they were targeted, and then need time to make the subsequent decision to take decisive action. Even if the party discriminated against desires to take action, however, they have only cleared the first of many hurdles resulting from the complicated complaint process.

Dr. Krey demonstrated one such loophole with a story of two men who were searching for an apartment as a gay couple. They found an apartment they liked and one called to inquire about viewing the property. The landlord assured the man that the property was still available and promptly arranged a time for a viewing. When the couple arrived together, however, the landlord abruptly withdrew the offer, saying that “their kind” was not welcome there. While the landlord’s callousness is itself shocking, of even greater concern is that such discrimination is completely legal under the AGG.

The parts of the AGG prohibiting discrimination in the area of housing place three critical caveats on the law. First, the landlord/lady is free to discriminate if they or any relative is also living on the property. Second, the prohibition only applies to those property owners renting out more than fifty apartments, a number that Perreng called “arbitrary.” Finally, in a very broadly worded exception, discrimination is allowed in certain cases in order to “preserve the social balance of a dwelling.” The practical effect of these caveats is that while housing discrimination may be prohibited in theory, the legal exceptions mean that it is frequently, in fact, quite permissible de facto.

Another shortcoming of the AGG is that it lacks a clause protecting employees from discriminatory termination. Instead, the AGG merely points to the pre-established German law governing termination of employment, known as the Kündigungsschutzgesetz, (Act on the Protection Against Unfair Dismissal). The official position of the German government is that this pre-existing law already covers discriminatory labor practices. Perreng, however, emphatically stated that this is a violation of the EU directives.

Dr. Krey drew upon another anecdote to illustrate the weakness of the AGG in this respect. Shortly after the AGG passed into law, it was discovered that Mandy Günther, one of the more popular tour guides routinely employed by the Bundespresseamt (Federal Press Office) was a transsexual. She had been giving tours for the office for years without this detail affecting her performance; in fact, her sexual identity was not widely known. After the Bundespresseamt discovered she was a transsexual, however, they stopped scheduling her to give tours. Ms. Günther sued under the AGG, and the office was ordered to issue a formal apology and pay €5,000. The office was not, however, required to maintain Ms. Günther as an employee, and she ceased her employment with the office because she no longer felt welcome there.

This outcome typifies the legalities surrounding employment termination under the AGG. Courts can force employers to apologize and pay a fine – not to exceed three months’ salary – but the employer cannot be forced to reinstate an employee’s position. Furthermore, the law does nothing to safeguard potential complainants’ jobs, meaning one may often have to weigh the choice to file a discrimination complaint very carefully.

Dr. Krey went on to detail other problems with the AGG’s employment protections, for the previous story deals not only with termination of employment, but also touches upon what he calls “self-censorship” in the workplace. This problem is particularly acute for LGBT individuals, for whom it is possible to hide one’s identity. The realm of labor discrimination does not begin and end with terminating employment – discrimination in the workplace can take a broad range of forms. Dr. Krey pointed to statistics showing that only 50% of homosexual employees in Germany are ‘out’ in the workplace and remarked that there is nothing the law can to do protect one against self-censorship. Yet given the weak protections of the AGG and the lack of standards for workplace tolerance, this form of censorship certainly becomes more understandable. Despite these weaknesses, however, Dr. Krey emphasized that he feels the AGG is more effective in the labor market than any other sector. Given the context, this sentiment is not necessarily reassuring.

Criticism of the AGG has not been limited to strictly implementation matters either. The opening text of the law states that it extends protections on the basis of “race or ethnic origin.” Yet due to the difficult history of the Nazi era, the use of race in Germany today is normally considered taboo. In the perception of many Germans, using the term race inherently affirms the existence of different human races, and thus employing the word itself is considered a racist act. Critics of this particular part of the AGG point out that the EU directives did not mandate that race appear in the text of the law and insist that “ethnic origin” already offers protections on these same grounds. In the government’s official comments on the bill, it clarified that the use of race was not meant to affirm any theories of separate races; rather, the word was meant to guarantee protection from racist ideologies. Commenting on this issue, Dr. Cremer said that there should be no place for the word “race” in German law today. He went on to comment that the Institute for Human Rights is continuing to campaign for the removal of the offensive term from the law.

Finally, the single biggest problem with implementing the AGG lies with the Antidiskriminierungsstelle, or Anti-discrimination Agency. The AGG provided the legal mandate for the office, as required by the EU directives, and the government established the agency on August 18, 2006. Yet two years later, the agency maintains a low profile.

The Anti-discrimination Agency is tasked with three main objectives. The most important job is to provide information to potential plaintiffs. Yet this work is hamstrung by the law itself, which states that the agency can neither give legal advice, nor advocate on behalf of complainants as they work through the difficult system. This regulation effectively reduces the agency to a bureaucratic role of receiving and processing complaints.

Additionally, the agency is to fill a public relations role of raising awareness surrounding the AGG’s protections. Yet comments by Dr. Krey revealing a general public ignorance of the rights afforded by the AGG would seem to indicate that the office is also failing in this role. Our investigation of these public relations efforts turned up a website and a small brochure with ten bullet points, translated into six languages. Finally, the agency is to provide the Bundestag with a paper on discrimination issues and possible solutions every four years. The first paper is due to be handed over in 2009.

The agency is currently headed by Dr. Martina Köppen. Though Dr. Köppen’s position is supposed to be that of an independent watchdog, the post is appointed by the Ministry for Family Affairs, Senior Citizens, Women and Youth, and the term runs concurrent with the election cycle. Contrary to her peers working outside the government, Dr. Köppen has repeatedly commented in public that she feels the AGG is working well and does not need to be strengthened. This is a position she shares with the conservative CDU, which happens to be the very party presently in charge of the Ministry for Family Affairs, Senior Citizens, Women and Youth. This fact raises grave concerns regarding the ability for the head of this critical office to be independent. The office did not return inquiries when contacted for comment.

Despite these many shortcomings, the AGG has made some important contributions to the legal and social framework of discrimination protection in Germany. One of the most important strengths of the AGG is that it goes beyond the EU mandates by extending all its protections (housing, healthcare, etc.) to minority groups for which the directives only required employment protection. While these protections might be particularly weak in some areas, the government nevertheless set an important precedent by avoiding a “two-tier” hierarchy of protected minorities, as the EU directives allowed. This victory means that moving forward, work can focus on fixing the AGG, instead of getting the baseline law extended to additional minority communities. Critically, if advocates succeed in strengthening the law, their success will benefit the many different communities protected by the law.

On a more abstract level, the passage of the AGG and subsequent discussions have forced German society to begin confronting issues of discrimination. Led by the BDI and BDA, trade and industry groups continue to assert that there is not a distinct discrimination problem in Germany. Nevertheless, they persist that extending the AGG would be extravagantly expensive. But now, information gathered by the government is beginning to indicate that discrimination protection might not be so pricey. A recent report from Der Spiegel cited findings that the actual cost of the AGG to businesses has been under €26 million. This figure is a far cry from the €1.73 billion price tag frequently cited by business lobbies. Unfortunately, these facts have been unable to alter the positions of the BDI and BDA; when contacted for this article, spokespersons referred to policy papers from 2006.

Though these lobbies have maintained their position that there is no discrimination in Germany, a different story emerged at a recent Humanity in Action panel discussion on racism. There, experts were easily able to recount multiple instances of racism, xenophobia, and blatant discrimination in German society, in areas from employment to education. Such anecdotes cast doubt on the naïve proclamations that Germany does not suffer from discrimination today. In this context of vastly divergent accounts, the AGG is helping by assembling a more accurate picture of lingering biases.

Along these lines, Dr. Krey believes that the law is also having a more subtle, less-talked about effect, which he labeled a “pedagogical, moralizing effect.” It is true, Dr. Krey admits, that laws cannot change a society quickly. But over longer periods of time, he holds that people’s prejudices will be changed. He illustrated this claim with a hypothetical example. Suppose there is a person who is somewhat homophobic; even with the new laws, he will probably hold the same homophobic beliefs as before, but under these laws, he may be more reluctant to express such beliefs openly. It may be that the person never changes his opinions, but because of the law, he has changed his behavior. And over time, little by little and from generation to generation, in this way a law can change society.

Finally, in concrete legal terms, Perreng points out that regardless of the faults of the AGG, it is better than what came before. While agreeing that laws can only address symptoms of deeper societal maladies, Perreng notes that individuals still need these critical legal tools in order to protect themselves. Even though the AGG may be a seldom-used law, at least it is there when people decide to take legal recourse. The AGG means that millions of Germans and people residing in Germany now have some legal recourse when they become targets of discrimination in key areas of social life.

Authors’ Recommendations on Improving the AGG

The AGG could be significantly improved by making six key changes. The first and most straightforward of these recommendations would be to abolish the word “race” from the text of the law. Nobody ever made a convincing case on behalf of including the offensive term, and it merely duplicates the language of “ethnic origin.” It is simply illogical to risk giving grievous offence without reason.

Second, the complaint period should be extended. We recognize the legitimate concerns that too long a complaint period could be paralyzing, particularly for employers. Yet a simple one-month extension is a reasonable compromise, and the total of three months would better allow complainants to navigate the AGG’s complicated legalities.

Third, it is necessary to give organizations the power to file suit on behalf of aggrieved parties or communities. At present, suits may only be filed in this manner in the most grievous of cases. Realistically, however, many forms of discrimination do not target just one individual, but rather entire communities. These cases are particularly important to rectify, yet without a class action mechanism, there is no adequate legal redress for such instances.

Fourth, the employment section of the AGG must be clarified. At present, the AGG merely points to the Kündigungsschutzgesetz in general. At a minimum, it is necessary for the AGG to point to the specific sections of the Kündigungsschutzgesetz that are relevant to anti-discrimination law. It is worth noting that the EU has also drawn attention to the previous three points. In January 2008, EU Commissioner for Social Affairs Vladimir Spidla sent a letter to the German government requesting clarification on the German position regarding these three points. Such requests are the first step in bringing legal proceedings at the EU level for violation of contract.

Fifth, the housing section must be tightened. The arbitrary nature limiting the mandate for equal protection only to renters owning more than fifty apartments is particularly without justification. The paragraph that allows discrimination in order to maintain a social balance is overly broad, yet this qualification has also been used by some cities to prevent ghettos from forming. The general wording, however, lends this clause to abuse. The text, therefore, should be specified in a manner that continues to provide a means for preventing ghettos, while removing the possibility for unjustified discrimination in housing.

Finally, the Anti-discrimination Agency must be strengthened. A recent report by the EU Agency for Fundamental Rights concludes that Germany is one of nine European states lacking an effective equality body. The report further states that this deficiency is a major contributor to the relative lack of sanctions/awards under the AGG. Allowing the agency to take a greater role in helping complainants would be a good place to start, as would strengthening the agency’s independence from the Ministry of Family Affairs, Senior Citizens, Women, and Youth.

In the end, it is difficult to point to one overarching reason why the AGG has not seen more use since its inception. Many experts with whom we spoke point to the complicated nature of the law; all of them point to its relative newness. Yet it is Dr. Krey who gives the most sincere answer, “To defend yourself against discrimination requires an investment of time, money, and above all, courage. And in the end, there is no guarantee that you will get anything.”

It could simply be that the AGG is a bad law, or to use spokesman Gehb’s words, “stinky hand cheese that has lain out in the sun too long.” But as both Drs. Krey and Cremer note, it is also the case that laws cannot quickly change society, and particularly in the case of the AGG where the law is trying to correct very deep-seated prejudices. Phrasing his argument another way, Dr. Cremer hypothesizes that Germany might simply lack the proper anti-discrimination culture. Of course, in such a context, laws become even more important, and thus a better law would be a good place to start.

References

Print Sources:

Abramsohn, Jennifer. “German anti-discrimination law still in the works,”

Huke, Rainer, and Kristina Schuett. “The meaning of the AGG for companies - How bureaucracy and the risk of liability can be limited.” Year-book of employment law 2006: 61-71, Berlin: Erich Schmidt Verlag, 2007.